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This week’s entry focuses on the redetermination of the last of four Development Consent Orders to be quashed in 2021.

All was well with legal challenges to the grant of DCOs for nearly ten years from 2011 (from the applicants’ point of view, at least), with all such challenges being unsuccessful. 2021 was then a disaster, with four being quashed – two by consent and two after a court hearing – in quick succession. None has been quashed since then, although the refusal of the Aquind project was quashed last year.

When a DCO is quashed, it does not go back to the start of the whole process but merely to the start of the last stage, that of the Secretary of State’s decision. It is no longer under a three-month deadline, though, as will become abundantly apparent.

All four quashed DCOs have now been re-granted. At least one has been challenged again, but at least one has not been challenged. The most recent to be re-granted was for the A38 Derby Junctions project. There is a new decision letter and a new DCO.

I have run a comparison between the old DCO and the new one and can report that, other than dates changing, they are pretty much identical. The expression ‘as if it were a dispute’ has been added no fewer than ten times to every mention of compensation under the Land Compensation Act 1961; future DCO drafters, please note. The only other changes have been to correct typographical errors such as mentions of ‘1 metres’.

The new decision letter refers to the required ‘statement of matters’ for redetermination and the two consultation exercises that were undertaken – over 18 months ago. There is not much to add from the analysis of the original decision letter in this blog post from January 2021, although it has been supplemented quite a lot, nearly doubling from 25 pages to 46 pages. I thought I was reading the Stonehenge decision letter for a moment when it was talking about Unesco and the World Heritage Site, but this is the Derwent Valley Mills one.

The main area with additional text is, not surprisingly, on climate change, as this was the subject of the challenge that led to the DCO being quashed. The delay to the project has moved construction emissions from the third and fourth carbon budgets to just the fourth, but this is still not significant. It is worth noting that:

‘The IEMA guidance considers that the crux of significance is not whether a project emits GHG emissions, nor even the magnitude of GHG emissions alone, but whether it contributes to reducing GHG emissions relative to a comparable baseline consistent with a trajectory towards net zero by 2050.’

In conclusion on carbon, the letter says that the Secretary of State is satisfied that:

  • ‘The Proposed Development will not lead to a breach of the Paris Agreement;
  • There has been adequate consideration of the cumulative effects of carbon emissions; and
  • The Proposed Development will not affect the Government’s ability to meet the 2050 net zero target.’

One last note: it was alleged that the additional information supplied by the applicant constituted ‘further information’ under the environmental assessment regime, but the Secretary of State disagreed. You might wonder why, but if he had agreed, it would have meant that the existing information would have been considered inadequate; for applicants, it is best to avoid using the phrase ‘further information’.

Four un-quashings

So that means that all four DCOs quashed in 2021 have been reinstated. In fact, it seems that you can’t kill a DCO in the courts; it will simply keep getting re-approved, and it is better to get it refused by the Secretary of State (although even then that won’t necessarily be the end, as we saw with Aquind and earlier with Preesall).

For the record, the changes to the other three DCOs can be summarised as follows:

  • The Manston Airport DCO, the other one whose challenge was not defended rather than getting to court, did not change much at all either. A definition of ‘electronic communications network’  and several instances of ‘as if it were a dispute’ were added, but that was it. It has been challenged again, and a decision is awaited.
  • The Norfolk Vanguard DCO had quite a few minor changes made and a whole schedule on compensation added, although that was not the reason the DCO was quashed, so it wouldn’t have had that if it hadn’t been for the unrelated onshore substation assessment error. It has not been challenged again, but its sister project, Boreas, has been halted and is under review.
  • The Stonehenge DCO had some minor changes made, including the updating of two certified documents to reflect new versions issued during the redetermination. It notably did not involve changing two requirements, even though the Secretary of State said he had changed his mind on them since the previous decision letter. It also removed ‘within the order limits’ from the scope of the main authorisation article, presumably because some powers such as surveying and protective works to buildings could go outside the limits. A second challenge is apparently in the offing.

In terms of timing, the old and new decision dates had the following separations:

  • Vanguard: July 2020 to March 2022, 20 months, 12 months since quashing
  • Manston: July 2020 to August 2022, 25 months, 18 months since quashing
  • Stonehenge: November 2020 to July 2023, 32 months, 24 months since quashing
  • A38: January 2021 to August 2023, 31 months, 25 months since quashing

Even though two of the DCOs hardly changed at all and the other two didn’t change much, that represents a considerable delay to all four projects.

The next decision on a DCO that is due is for the severely delayed A1 Morpeth to Ellingham project, which has a deadline of 5 September 2023.

To hear the latest updates from our experts, subscribe to our Planning Act 2008 Blog.

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